FIFTH SECTION. CASE OF ROUSK v. SWEDEN. (Application no /04) JUDGMENT STRASBOURG. 25 July 2013 FINAL 25/10/2013

Transcription

1 FIFTH SECTION CASE OF ROUSK v. SWEDEN (Application no /04) JUDGMENT STRASBOURG 25 July 2013 FINAL 25/10/2013 This judgment has become final under Article 44 2 of the Convention. It may be subject to editorial revision.

2

3 ROUSK v. SWEDEN JUDGMENT 1 In the case of Rousk v. Sweden, The European Court of Human Rights (Fifth Section), sitting as a Chamber composed of: Mark Villiger, President, Angelika Nußberger, Boštjan M. Zupančič, Ann Power-Forde, Ganna Yudkivska, Helena Jäderblom, Aleš Pejchal, judges, and Claudia Westerdiek, Section Registrar, Having deliberated in private on 9 July 2013, Delivers the following judgment, which was adopted on that date: PROCEDURE 1. The case originated in an application (no /04) against the Kingdom of Sweden lodged with the Court under Article 34 of the Convention for the Protection of Human Rights and Fundamental Freedoms ( the Convention ) by a Swedish national, Mr Jim Rousk ( the applicant ), on 22 July The applicant was represented by Mr J. Thörnhammar, a lawyer practising in Stockholm. The Swedish Government ( the Government ) were represented by their Agent, Ms I. Kalmerborn, of the Ministry for Foreign Affairs. 3. The applicant alleged that the Enforcement Authority s measures had caused violations of his right to the peaceful enjoyment of his property contrary to Article 1 of Protocol No. 1 of the Convention as well as his right to respect for his private and family life and home, contrary to Article 8 of the Convention. 4. On 6 June 2007 the application was communicated to the Government. 5. On 1 February 2011 the Court changed the composition of its Sections (Rule 25 1 of the Rules of Court) and the above application was assigned to the newly composed Fifth Section.

4 2 ROUSK v. SWEDEN JUDGMENT THE FACTS I. THE CIRCUMSTANCES OF THE CASE 6. The applicant was born in 1950 and died in June His wife and sole heir, Mrs Julia Rousk, decided to pursue the application. She lives in Hässelby. A. General background 7. The applicant was the owner of a close company and was under a statutory obligation to submit a special income tax return every year. For the tax assessment year 2002 (income earned during 2001), he was obliged to submit the tax return no later than 31 March However, having failed that, in July 2002, the Tax Authority (Skattemyndigheten) in Stockholm ordered him to submit his tax return within two weeks from receiving the order. As he did not comply with the order, the Tax Authority informed him that it would make a discretionary assessment of his income and, in October 2002, sent him a proposal for a discretionary assessment. The applicant was given two weeks to comment on it, but did not do so. In November 2002, the Tax Authority decided to maintain the proposal and, as it found no grounds for exemption, imposed tax surcharges on him. The applicant was informed that the taxes, tax surcharges and a delay charge amounted to, in total, SEK 232,572 (approximately EUR 27,000). This amount was to be paid by 26 February The Tax Authority s decision included information about how to request reconsideration or appeal against it. However, at that time the applicant did neither, nor did he request respite from paying the taxes. 8. Since tax debts to the State are immediately enforceable, the Tax Authority, after having reminded the applicant of his obligation to pay the tax debt, passed the claim for collection to the Enforcement Authority (Kronofogdemyndigheten) in Stockholm where it was registered in April B. The writ of execution 9. On 28 May 2003 the Enforcement Authority issued a writ of execution (beslut om utmätning) attaching the applicant s site-leasehold right (tomträtt) and the house on the site where the applicant and his wife lived (hereafter referred to as his property). It noted that the applicant s total enforceable debts amounted to SEK 255,329 and that his property s taxation value for 2002 was SEK 1,372,000, with his mortgage amounting to

5 ROUSK v. SWEDEN JUDGMENT 3 SEK 960,200. On 29 April 2003, an Enforcement Officer had been to the applicant s home for a pre-planned visit to investigate whether he had any assets that could be attached. However, the applicant had not been at home. The Enforcement Officer had left a note for the applicant, requesting him to contact the Enforcement Authority. It would appear that he did not do so. According to an investigation report of the applicant s assets dated 4 July 2003, and carried out by the Enforcement Authority, no other assets to cover the applicant s debts than his property was accounted for. The writ of execution of 28 May 2003 was sent to the applicant but it would appear that he only became aware of it some time in July 2003 and on 4 August 2003, upon request by the applicant, the Enforcement Authority sent him a copy of the writ. 10. On 10 August 2003 the applicant appealed against the writ of execution to the District Court (tingsrätten) of Stockholm and requested that it be repealed as his tax debt had not been finally decided. He noted that he had not been served the decision to attach his property and thus had been prevented from appealing against it sooner. He then stated that he would submit his tax return for the tax assessment year 2002 to the Tax Authority immediately and that he had also requested respite from payment of his taxes although the Tax Authority had not dealt with this request yet. Moreover, he claimed that it was utterly disproportionate to sell his home, which would entail serious economic, social and medical consequences for him and his wife. He had suffered from serious depression for some years, for which he had sought medical help in October 2002, and in February 2003 he had begun treatment. Only lately had he begun to feel better and been able to deal with his situation. He submitted a medical certificate which stated that he had been in contact with a psychiatric care centre since February 2003 and that he suffered from depression and was taking antidepressants. Lastly, he informed the court that another of his debts, to the Traffic and Property Management Department (Gatu- och Fastighetskontoret; hereafter the TPMD ), had been cancelled as he had paid it. 11. On 28 August 2003 the District Court rejected the appeal. It found no reasons to repeal the decision as there was an enforceable debt against the applicant for which the creditor, the State, demanded payment. The court was notified by the Enforcement Authority that, to the latter s knowledge, the Tax Authority had not granted the applicant respite from the payment of his taxes. 12. The applicant appealed to the Svea Court of Appeal (hovrätten) on 15 September 2003 and requested an extension of three weeks to submit his appeal since he had asked for certain documents from the Enforcement Authority but had not yet received them.

6 4 ROUSK v. SWEDEN JUDGMENT 13. On 5 November 2003 the Court of Appeal, having received no further communications from the applicant, refused leave to appeal. The applicant made no further appeal to the Supreme Court (Högsta domstolen). C. Request for respite from payment of the taxes and re-assessment of the applicant s income for On 28 July 2003, by fax and letter, the applicant, referring to an order to submit his tax return, stated that due to illness he had not submitted his tax returns for the tax assessment years 2002 and He requested the Tax Authority to grant him respite from the payment of his taxes until a new tax assessment had been made, as he intended to submit his tax returns shortly. Apparently, the fax and letter were sorted wrongly in the incoming mail to the Tax Authority and thus it was not until the applicant renewed his request one month later, on 28 August 2003, that the Tax Authority dealt with it. At this time, he also submitted his tax return for the tax assessment year He invoked his illness and submitted a medical certificate confirming that he suffered from depression. Lastly, he noted that it was extremely important for him that the request be dealt with as soon as possible. He reiterated his request for respite in a fax to the Tax Authority on 1 September 2003, noting that it was of highest importance to him that the request be dealt with promptly. 15. On 3 September 2003 the Tax Authority granted him respite from payment of the taxes and tax surcharges imposed on him as a result of the discretionary tax assessment. This decision was registered on the same day in the applicant s tax account in the Tax Authority s database. However, the Tax Authority did not inform the Enforcement Authority about the respite directly by fax or in any other way. 16. On 30 September 2003 the Tax Authority sent the applicant a preliminary re-assessment of his income for the tax assessment year 2002 and gave him two weeks to comment on it. In its re-assessment, the Tax Authority first noted that since the applicant had submitted a tax return, the discretionary assessment, including the tax surcharges, should be repealed. However, it then found that the applicant s tax return lacked essential information, for which reason it accepted only part of it and supplemented the remainder with its own assessment. It further imposed tax surcharges on the part where it had made a discretionary assessment, resulting in a total amount for taxes and tax surcharges of SEK 78,866 (approximately EUR 9,150). 17. On 26 November 2003 the Tax Authority confirmed its preliminary consideration and the respite from the payment, which had been granted on 3 September 2003, lapsed. Instead, the applicant s tax debt to the State, based on the new decision, became enforceable. However, on 30 April

7 ROUSK v. SWEDEN JUDGMENT , upon request by the applicant, the Tax Authority granted him respite from payment of the tax surcharges (SEK 17,469). 18. Upon request by the applicant, the Tax Authority, on 29 June 2004, reconsidered its decision in the light of his further submissions in the case but decided not to change the decision. 19. On 2 December 2007 the applicant appealed against the Tax Authority s decision to the County Administrative Court (länsrätten). On 17 January 2008 the Tax Authority decided not to alter its decision and forwarded the appeal to the County Administrative Court. No further decisions or judgments have been submitted by the parties and, consequently, the outcome of these proceedings is unknown to the Court. D. The request for stay of the sale of the applicant s property at public auction and the actual sale 20. In the meantime, on 23 June 2003, the Enforcement Authority decided that the applicant s property should be sold at public auction to pay his debts and he was informed of this decision by a letter of 4 July Moreover, in a letter of 31 July 2003, he was informed that the public auction would take place on 3 September On 28 July 2003, an evaluation of the applicant s property was carried out by an independent company at the request of the Enforcement Authority. The company valued the property to between SEK 1,850,000 and SEK 2,150, On the same day, 28 July 2003, the applicant requested the Enforcement Authority to stay the sale of his property for a period of two months, stating that he had not been able to submit his tax return in time due to personal reasons. He further stated that he had paid another of his debts, namely that to the TPMD, which should therefore be removed from the Enforcement Authority s list of his debts. According to the applicant, he had telephoned the Enforcement Authority earlier and informed them that he was suffering from serious depression for which he was being treated. 23. On 30 July 2003 the Enforcement Authority rejected the applicant s request. It noted that the State, as petitioner, had opposed a stay of execution. Moreover, the personal reasons invoked by the applicant were not such special circumstances that a stay could be granted. Thus, there were no reasons to stay the enforcement proceedings. 24. On 4 August 2003 the applicant appealed against the decision to the District Court, invoking the same grounds as in his appeal against the writ of execution (see above 10), namely his illness, the fact that the debt to the TPMD had been paid, that he would submit his tax return and had requested respite from the payment. He also submitted a copy of the medical certificate.

8 6 ROUSK v. SWEDEN JUDGMENT 25. In reply to the applicant s appeal, the Enforcement Authority submitted, inter alia, that the fact that the applicant had now submitted a letter from the TPMD confirming that his debt in that respect had been paid did not alter the fact that his tax debt remained and was enforceable and that the State, as petitioner represented by the Enforcement Authority, required payment. There is no information whether the Tax Authority was consulted on this issue. 26. On 28 August 2003 the District Court rejected the appeal. It noted that the petitioner, the State, had not agreed to stay the sale and that there were no special reasons in the applicant s case to justify a stay on the sale. 27. On 3 September 2003 at 1.45 p.m. the public auction to sell the applicant s property took place. From the Enforcement Authority s protocol of the auction it appears that a first bid in the amount of SEK 1,475,000 was rejected by the Enforcement Authority as being too low. However, after a second round of bids, the Enforcement Authority accepted the highest bid in the amount of SEK 1,600,000 (approximately EUR 186,000) as it considered it unlikely that a higher sum could be obtained. The date of accession to the property for the new owner, a private person, was set for 1 October 2003 and, consequently, the applicant was informed that he had to vacate his home before that date. The protocol further noted that the direct costs for the public auction amounted to SEK 45, On 15 September 2003 the applicant appealed to the Court of Appeal against the District Court s decision not to stay the sale of his property. On 5 November 2003 the appellate court struck the case out of its list of cases as the property had already been sold when the appeal was lodged with the court. 29. On 17 September 2003 the applicant appealed against the sale to the District Court, demanding that it be declared null and void since the Tax Authority, on the same day the auction was held, had granted him respite from the payment of his tax debt and, therefore, the writ of execution should have been revoked. In the alternative, he requested that a new auction be held in order to obtain a higher price for the property since, in his view, it had been sold for a price far lower than its real value. In this respect, he noted that the independent company had valued the property at around SEK 2 million. 30. In reply, the Enforcement Authority submitted that it had not been shown that the Tax Authority s decision granting the applicant respite from payment of his tax debt had been taken before the public auction had taken place at 1.45 p.m. According to information from the Tax Authority, the decision had been made in the afternoon of 3 September. In any event, the applicant had other debts to the State amounting to SEK 23,775 (approximately EUR 2,800) which warranted the sale of the property. It further noted that only two persons had made bids for the property at the auction and that it had refused the first offer and accepted the second one,

9 ROUSK v. SWEDEN JUDGMENT 7 which amounted to 80% of the estimated market value. It pointed out that buying a property at public auction entailed more risks for the buyer, for which reason the sale price was normally below market value. For example, there were no guarantees that the state of the property was the same on the day of accession to the property as when the property had been inspected prior to the sale. 31. The applicant commented on the Enforcement Authority s submission and pointed out that the remaining enforceable debt after he had been granted respite from his tax debt amounted only to around SEK 7,500 and not SEK 23,775 as claimed by the Enforcement Authority. He further noted that the Tax Authority s decision on respite was registered at 2.02 p.m. on 3 September and that the Enforcement Authority thus could have verified this during the pause between the two bidding rounds. In this regard, he pointed out that he had informed the Enforcement Authority of his request for respite from paying his taxes and that it therefore should have verified directly with the Tax Authority before beginning the public auction. This was especially so as both authorities represented the State, which was the petitioner in the case. 32. On 15 October 2003 the District Court rejected the appeal. It noted that the writ of execution had not been annulled and that the grounds invoked by the applicant for why the writ should have been annulled did not give reason to annul the sale of the property. As concerned the price obtained for the property at auction, the court shared the Enforcement Authority s assessment. The applicant s further submissions did not give cause to grant his appeal. 33. On 4 November 2003, the applicant appealed to the Court of Appeal, invoking Article 1 of Protocol No. 1 to the Convention, and claiming that it was clearly disproportionate to sell his property for a debt which, according to his calculation, amounted to no more than SEK 6,721 (approximately EUR 800). 34. On 12 December 2003 the Court of Appeal refused leave to appeal. The applicant appealed against the decision on 2 January 2004 and reiterated his claims. However, on 23 January 2004, the Supreme Court refused leave to appeal. E. The decision to evict the applicant and its consequences 35. Although the applicant had been ordered to move out of his house before 1 October 2003, he refused to do so. As a result, on 6 October 2003 the Enforcement Authority, at the request of the buyer of the property, decided to evict the applicant, unless he moved out before 14 October On 10 October 2003 the applicant requested respite from the eviction, invoking his and his wife s poor health and the fact that they had no alternative housing. Moreover, he stated that the sale had not yet gained

10 8 ROUSK v. SWEDEN JUDGMENT legal force, as he had appealed against it, for which reason he was still the rightful owner of the property. 37. On the same day, the Enforcement Authority rejected the request as it considered that the applicant s situation was not likely to change within the next few weeks, as it was not a question of a sudden illness, and respite could only be granted for a maximum of four weeks and if there were exceptional reasons. 38. On 11 October 2003 the applicant appealed against both decisions to the District Court, disputing the eviction decision and insisting that, at the very least, the eviction should be postponed. He maintained his arguments and pointed out that while he was obliged to leave his home before the sale had gained legal force, he would not receive the money from the sale until after that, which effectively prevented him from buying a new home. He added that both he and his wife had suffered a crisis reaction due to their situation which made it impossible for him to deal with the situation and search for a new home for them. He furnished a medical certificate, dated 13 October 2003, by a chief physician and specialist in psychiatry, which stated that the applicant suffered from depression, the symptoms being a generally low mood, difficulties taking initiatives and getting things done and poor concentration. His state had fluctuated somewhat, but overall there had been an improvement. He was in need of continued medication and a calm and secure situation. 39. On 13 October 2003 the District Court decided not to postpone the eviction set for the following day and, on 5 November 2003, it rejected the appeal, stating that it shared the Enforcement Authority s reasoning. 40. Upon further appeal by the applicant, in which he maintained his claims, the Court of Appeal refused leave to appeal on 23 December 2003, as did the Supreme Court on 27 May Meanwhile, on 22 October 2003, the eviction was enforced by the Enforcement Authority. The applicant and his wife were present, as were two police officers. The house was emptied by professional movers and the contents stored by them. The applicant s cat was taken to a cattery and his car was taken to a pound. However, a number of items, listed by the Enforcement Authority, were thrown away as they were considered to be either impossible to store (such as flowers and food from the fridge/freezer) or rubbish. A bed which could not be removed from the house in one piece due to its size was also, by special decision of the Enforcement Authority, destroyed and thrown away. According to a letter from the Enforcement Authority to the applicant, dated 18 May 2004, the cost of the eviction amounted to SEK 71, The applicant complained against these measures to the District Court and, at the same time, appealed against the Enforcement Authority s decision concerning the bed. He stated that he considered it to be a violation of his right to property to evict him and to throw some of his belongings

11 ROUSK v. SWEDEN JUDGMENT 9 away, having regard in particular to the fact that the sale of his property had not yet gained legal force and that, consequently, he was still its lawful owner. He further submitted a detailed list of all items which he claimed had been thrown away or had disappeared and demanded compensation for the loss of these items. He further complained that a flag pole which belonged to his brother had been considered as part of the property. 43. On 26 November 2003 the District Court found that no mistakes had been made during the eviction in relation to the decision to destroy the bed and therefore rejected the applicant s complaint. The applicant did not appeal against this decision to the Court of Appeal. 44. Moreover, on 23 December 2003, the District Court rejected the applicant s complaint concerning other measures taken during the eviction and dismissed the claim for compensation for items destroyed or thrown away as it had to be tried in separate proceedings. 45. The applicant appealed further to the Court of Appeal which, on 29 January 2004, refused leave to appeal. The applicant did not make any further appeal to the Supreme Court. F. The distribution of the money obtained from the sale of the property 46. On 1 October 2003 the Enforcement Authority held a distribution session (fördelningssammanträde) to divide the money obtained from the sale of the property among the creditors. From the protocol of the session it appears that it was decided that the applicant s mortgage (SEK 881,788) should be repaid to his bank immediately, while the costs and fees involved in the proceedings of the public auction (SEK 45,660), the debt to the Tax Authority and the remaining money left for the applicant should be paid once the sale gained legal force. The debt to the Tax Authority was noted in the protocol as amounting to SEK 256, The applicant appealed against the Enforcement Authority s distribution decision, claiming that it should be declared null and void since he had been granted respite from payment of most of his tax debt and it therefore should not have been included in the protocol, except for the sum of SEK 6,721. The Enforcement Authority had been informed about the respite on 8 September 2003, and had therefore known about it at the time of the distribution session. 48. The Enforcement Authority submitted in reply that its computer system was updated on the first Saturday of every month and that the respite granted by the Tax Authority thus had not yet been registered on 1 October 2003 when the distribution session had been held. However, since then, the registration had been made and the enforceable tax debt had been reduced to SEK 6,721, which would be taken into account when the money was paid to the different parties.

12 10 ROUSK v. SWEDEN JUDGMENT 49. On 19 November 2003 the District Court decided that the protocol from the distribution session should be corrected to reflect the correct amount (SEK 6,721) due to the State at the time of the distribution session, since the Enforcement Authority had known about the respite from payment at the time, even though it was not formally registered in its database. This decision gained legal force. 50. On 27 January 2004, the Enforcement Authority paid the applicant SEK 524,343 (approximately EUR 61,000), namely the amount of money which remained from the sale of the property after all debts as well as costs relating to the sale on public auction and the eviction had been paid. The State received SEK 6,721 as payment for the applicant s enforceable debts to the State (apparently these were debts relating to vehicle tax and television licence fees). II. RELEVANT DOMESTIC LAW AND PRACTICE 51. Domestic provisions of relevance to the present case are found mainly in the Tax Assessment Act (taxeringslagen; 1990:324), the Act on the Filing of Income Tax Returns and Statements of Income (lagen om självdeklarationer och kontrolluppgifter, 1990:325; replaced by 2001:1227; hereafter the Tax Return Act ), the Tax Payment Act (skattebetalningslagen, 1997:483), the Act on the Collection of Debts to the State (lagen om indrivning av statliga fordringar m.m., 1993:891; hereafter the Debt Collection Act ), the Ordinance on the Collection of Debts to the State (indrivningsförordningen, 1993:1229), the Enforcement Code (utsökningsbalken, 1981:774) and the Enforcement Ordinance (utsökningsförordningen, 1981:981). 52. The Tax Authority is the central authority responsible for tax assessment and collection. It has close administrative ties to the Enforcement Authority which has as its main task to ensure collection of enforceable private and public debts. According to the Enforcement Code, Chapter 2, section 30, the Enforcement Authority represents the State in public cases (allmänna mål) before the Authority, which includes payment of taxes (Chapter 1, section 6). A. Obligation to file an income tax return and discretionary assessment 53. According to Chapter 2, section 7, and Chapter 4, section 5, of the Tax Return Act, owners of close companies are obliged to submit a special income tax return every year, before a specified date. Chapter 4, section 2, of the Tax Assessment Act stipulates that the Tax Authority has to make its subsequent tax assessment decision before the end of November. A taxpayer who for exceptional reasons cannot submit an income tax return in due time,

13 ROUSK v. SWEDEN JUDGMENT 11 may be granted a short respite upon application (Chapter 16, section 1, of the Tax Return Act). 54. In specific circumstances specified in Chapter 4, section 3, of the Tax Assessment Act, such as when the person liable for taxes has failed to submit an income tax return or the income tax return is incomplete, the Tax Authority will estimate the tax or the basis for levying tax at an amount that appears reasonable in view of what has come to light in the matter. This is known as discretionary assessment (skönstaxering). 55. If the person concerned is dissatisfied with the decision of the Tax Authority, he or she has a right to reconsideration of the tax assessment decision or may appeal against it to a county administrative court. A request for reconsideration or an appeal must be submitted to the Tax Authority before the end of the fifth year following the tax assessment year (Chapter 4, section 9, and Chapter 6, sections 1 and 3 of the Tax Assessment Act). Further appeal lies to an administrative court of appeal and, subject to compliance with the conditions for obtaining leave to appeal, the Supreme Administrative Court. B. Payment and collection of tax debts 56. Tax that is payable under a basic decision on final tax must have been paid no later than the next due date occurring after 90 days have passed since the date of the decision (Chapter 16, section 6, of the Tax Payment Act). If special reasons exist, the Tax Authority may decide on another date as the final date for payment (ibid.). 57. Chapter 23, sections 7 and 8, of the Tax Payment Act provides that a request for reconsideration or an appeal against a decision concerning taxes has no suspensive effect on the obligation to pay the tax and a taxation decision may be enforced even if it has not become final. 58. However, the Tax Authority may grant respite from the payment of taxes and tax surcharges in accordance with the provisions laid down in Chapter 17, sections 2, 2a and 3 of the Tax Payment Act. Respite may be granted in three different situations: (1) if it may be assumed that the tax imposed will be remitted or reduced, (2) if the person liable for taxes has requested a reconsideration of the tax assessment decision or filed an appeal against it and it is uncertain whether he or she will have to pay the tax, and (3) if the person liable for taxes has requested a reconsideration or filed an appeal and payment of the tax would result in considerable damage for him or her or would otherwise appear unreasonable. 59. There are no legal provisions stipulating that an application for respite should be dealt with promptly or within certain time-limits. However, the National Tax Board (Riksskatteverket) has recommended that such applications should normally be dealt with within two weeks (RSV S 1998:13).

14 12 ROUSK v. SWEDEN JUDGMENT 60. Chapter 17, section 10, of the Tax Payment Act provides that no request may be made for collection of an amount covered by respite. Moreover, according to Chapter 3, section 21, of the Enforcement Code, enforcement may not take place if the defendant claims, for example, that he or she has paid the debt or that some other condition concerning the relations between the defendant and the other party amounts to an obstacle against enforcement and this objection cannot be ignored. In such a case, if an enforcement measure has already taken place, it shall lapse, if possible. 61. Chapter 20, section 1, of the Tax Payment Act provides that, if a tax amount has not been paid in time, the debt shall be transferred to the Enforcement Authority for collection unless there are special reasons to refrain from such a demand. However, before the debt is transferred, the debtor shall, unless there are special reasons, be requested to pay the debt (Chapter 20, section 3). According to Chapter 20, section 4 of the same Act, collection may be enforced under the Enforcement Code and further provisions on the collection of tax debts are to be found in the Debt Collection Act. Section 6 of the latter Act states that the Enforcement Authority shall carry out an investigation of the debtor s assets with a view to deciding on appropriate collection measures. 62. According to sections 7 and 8 of the Debt Collection Act, the Enforcement Authority may grant a deferment of payment in certain circumstances, for instance, while awaiting a decision from the competent authority concerning respite for payment or if it is called for due to the debtor s personal situation. Moreover, section 18 of the Debt Collection Act stipulates that the Enforcement Authority may suspend collection until further notice if further collection measures appear futile or are not justifiable in view of the costs, and the public interest does not require collection. This section further authorises the Government to give more detailed instructions on the application of this provision. 63. Consequently, in the Ordinance on the Collection of Debts to the State, the Government has specified that if the debtor s obligation to pay a tax debt has lapsed or been reduced, the Tax Authority must promptly (skyndsamt) notify the Enforcement Authority of this (section 8). This also applies if the debtor has been granted respite for payment or if it has been discovered that collection should not have been requested. C. Attachment, sale by public auction and eviction 64. All references in this section are to the Enforcement Code unless otherwise specified. 65. According to Chapter 2, section 19, decisions by the Enforcement Authority are immediately enforceable and enforcement measures are to continue even if the Authority s decision is appealed against. As concerns enforcement titles in public cases, Chapter 3, section 23, states that these

15 ROUSK v. SWEDEN JUDGMENT 13 may be enforced before they have gained legal force, if this has been specially prescribed. However, if the enforcement title has been revoked, the attachment shall be cancelled immediately. Chapter 1, section 6, specifies that public cases include cases concerning payment of taxes. Writs of execution shall be formally served on the debtor according to the main rule laid down in section 9 of the Enforcement Ordinance. 66. In the first instance, such assets shall be attached as may be used for payment of the claim with the least cost, loss or other inconvenience for the debtor (Chapter 4, section 3). According to the travaux préparatoires, real property, site-leasehold rights and registered ships and aircraft should, as a rule, be attached last (Government Bill 1980/81:8, p. 359 et seq.). 67. According to Chapter 4, section 10, attachment shall take place as soon as possible after the necessary documents have been received by the Enforcement Authority. Section 12 of the same chapter provides that notification shall, with some exceptions, be sent to the debtor by post or given to him or her in another appropriate manner before attachment takes place. 68. In public cases the sale of attached property shall take place without delay, unless there is an impediment to the sale or respite is granted by the Enforcement Authority (Chapter 8, section 19). Upon request by the debtor, respite from the sale may be granted by the Enforcement Authority only if the petitioner accepts it or there are special reasons (Chapter 8, section 3). As concerns attached real property and site-leasehold rights, they are normally sold by public auction (Chapter 12, section 1) and the sale should take place within four months of the attachment unless there is an impediment to the sale or respite is granted (Chapter 12, section 11). Public notice of the auction is to be given in good time and in an appropriate manner (Chapter 12, section 20). The applicant and the owner of the property, as well as known holders of claims and rights that should be taken into account at the auction, are to be given separate notice of the auction in good time (Chapter 12, section 21). 69. According to Chapter 12, section 46, a purchaser who has fulfilled his or her obligation to pay the purchase sum obtains access to the property on the day that has been decided for the distribution of the purchase sum. Moreover, Chapter 12, section 48, states that, notwithstanding any appeal against the auction, the purchaser obtains access to the property on that day, unless otherwise ordered by the court where the appeal is pending. 70. When attached property has been sold, the purchaser is entitled to receive, if necessary, enforcement assistance from the Enforcement Authority in order to take possession of the property (Chapter 8, section 18). However, before eviction takes place, the defendant shall be afforded an opportunity to express his or her views (Chapter 16, section 2). Moreover, the eviction shall be implemented so that reasonable regard is had to both

16 14 ROUSK v. SWEDEN JUDGMENT the purchaser s interests and the defendant s situation (Chapter 16, section 3). 71. In line with Chapter 16, section 3, eviction shall, if possible, take place within four weeks from receipt of the necessary documents by the Enforcement Authority but no sooner than one week from when the defendant is afforded an opportunity to express his views. However, Chapter 16, section 4, allows the Enforcement Authority to grant respite from eviction for a maximum of two weeks from the expiry of the fourweek time-limit referred to in section 3 if it is necessary with regard to the defendant. If there are extraordinary reasons, this respite may be extended to a maximum of four weeks. 72. Chapter 16, section 6, provides that the Enforcement Authority shall, if needed, attend to the transport of the property that shall be removed, rent space for storage of the property and take other similar measures arising from the eviction. 73. It follows from Chapter 18, section 14, of the Enforcement Code, that if an appeal against a decision on attachment is granted, later decisions in the case, such as decisions to sell property and to evict the owner, may also be revoked, provided these decisions are connected with the decision on attachment and that they had not gained legal force when the appeal was lodged. D. Access to databases 74. According to Information about the activities of the Swedish Enforcement Authority 1, the Authority has a nationwide computerised Enforcement Register which contains both public and private claims. All payments and actions taken in relation to debtors are recorded in the register. Moreover, the Tax Authority administers a Tax Register for taxation purposes, which contains records of all taxpayers, and to which the Enforcement Authority has direct access (see also, Chapter 2, section 8 of the Act on handling of information within the Tax Authority s taxation activities [lag om behandling av uppgifter i Skatteverkets beskattningsverksamhet, 2001:181], specifying which information the Enforcement Authority has direct access to). In accordance with Chapter 2, section 27, of the Act on handling of information within the Enforcement Authority s activities (lag om behandling av uppgifter i Kronofogdemyndighetens verksamhet, 2001:184) the Tax Authority also has direct access to the Enforcement Authority s databases in so far as concerns 1 Information document created by the Enforcement Authority and available on their internet site (downloaded on 1 November 2012): _english.pdf

17 ROUSK v. SWEDEN JUDGMENT 15 the former s taxation activities and where, according to Chapter 2, sections 2 and 5, they include enforcement procedures relating to tax debts. THE LAW I. THE GOVERNMENT S REQUEST TO STRIKE THE APPLICATION OUT OF THE LIST UNDER ARTICLE 37 OF THE CONVENTION 75. On 23 June 2008 the Government submitted a unilateral declaration in which they stated that they regretted the inconvenience caused to the applicant by the sale of his property by public auction and the ensuing eviction of the applicant and his wife and offered to pay him EUR 80,000. On this basis, the Government invited the Court to strike the application out of its list of cases, in accordance with Article 37 1 (c) of the Convention. 76. The applicant objected to the case being struck out and requested that the Court pursue its examination of the admissibility and merits of the case. 77. The Court notes that, under certain circumstances, it may be appropriate to strike out an application under Article 37 1 (c) of the Convention on the basis of a unilateral declaration by the respondent Government, even if the applicant wishes the examination of the case to be continued. It will, however, depend on the particular circumstances whether the unilateral declaration offers a sufficient basis for finding that respect for human rights as defined in the Convention does not require the Court to continue its examination of the case (see Tahsin Acar v. Turkey (preliminary objection) [GC], no /95, 75, ECHR 2003-VI, and Angelov and Others v. Bulgaria, no /04, 12, 4 November 2010). 78. In this respect, the Court notes that the Government have not admitted that there has been a violation of the Convention. Regretting the inconvenience caused to the applicant by the sale of his property at public auction and the ensuing eviction cannot, in the Court s view, be considered equivalent to an acknowledgment of a violation of the Convention. Moreover, although the measure proposed by the Government to remedy the situation, namely, paying an appropriate amount of money to the applicant, appears reasonable and sufficient, it cannot outweigh the absence of an acknowledgment of a violation having regard to the specific context in which unilateral declarations are intended to be used. 79. Thus, having regard to what has been stated above and the facts of the present case, the Court finds that the unilateral declaration does not offer satisfactory redress to the applicant and that, consequently, the Government have failed to establish a sufficient basis for finding that respect for human

18 16 ROUSK v. SWEDEN JUDGMENT rights as defined in the Convention does not require the Court to continue its examination of the case (see, Prencipe v. Monaco, no /06, 63, 16 July 2009; see also, by contrast, Akman v. Turkey (striking out), no /97, 23-24, ECHR 2001-VI, and Van Houten v. the Netherlands (striking out), no /03, 34-37, ECHR 2005-IX). 80. This being so, the Court rejects the Government s request to strike the application out under Article 37 1 of the Convention and will accordingly pursue its examination of the admissibility and merits of the case. II. ALLEGED VIOLATION OF ARTICLE 1 OF PROTOCOL NO. 1 TO THE CONVENTION 81. The applicant complained that his property rights had been violated because the sale of his property at public auction and the ensuing eviction were completely disproportionate to the aims pursued and because a number of his belongings had been destroyed or discarded during the eviction. Moreover, the property had been sold for a price far below market value, causing him substantial financial loss. He invoked Article 1 of Protocol No. 1 to the Convention, which reads as follows: Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law. The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties. A. Admissibility 82. The Government submitted that the application should be declared inadmissible for non-exhaustion of domestic remedies. They noted that the applicant had failed to appeal against the Court of Appeal s decision to the Supreme Court in the proceedings relating to the issuance of the writ of execution. Moreover, he had given no reasons for his appeal to the Court of Appeal in those proceedings. The Government observed that when the District Court had examined the appeal, the Tax Authority had not yet granted the respite from payment of the tax debt although that had been granted at the time of the Court of Appeal s examination of the appeal. However, since the applicant did not inform the appellate court about it, the court was unaware of this fact. In the Government s opinion, the Court of Appeal might have granted leave to appeal and revoked the decision to issue

19 ROUSK v. SWEDEN JUDGMENT 17 the writ of execution if it had known about the respite. Had this occurred, the decision to sell the property and the ensuing eviction could also have been revoked in accordance with Chapter 18, section 14, of the Enforcement Code. 83. The Government further observed that the applicant had not exhausted domestic remedies in relation to the proceedings concerning the destruction and throwing away of some of his belongings, including the bed, in connection with the eviction. The District Court s decision concerning the bed was not appealed against to the Court of Appeal, and the Court of Appeal s decision concerning other belongings was not appealed against to the Supreme Court. Moreover, the applicant could have sued the State for compensation in civil proceedings under the Tort Liability Act. 84. The applicant claimed that he had exhausted domestic remedies as it was not likely that the Court of Appeal or the Supreme Court would have granted leave to appeal and revoked the writ of execution. He also disagreed that a revocation of the writ of execution would automatically have entailed a revocation of the decisions to sell the property and to evict him. The applicant further stressed that his belongings had been put in storage when he was evicted and thus he had not had access to all his documents to be able to appeal properly. In his view, the national courts should have ordered the Enforcement Authority to complete the case with the relevant documents. In any event, the Court of Appeal had all the information necessary to make a proper examination of his case. 85. The Court first notes that, as concerns the proceedings relating to the destruction of the bed, the applicant did not appeal against the District Court s decision to the Court of Appeal, despite having been informed of this possibility in the District Court s decision. The Court also observes that if the applicant had appealed to the Court of Appeal and its decision had been negative, he could have lodged a further appeal to the Supreme Court. Both the Court of Appeal and the Supreme Court had full jurisdiction to overturn the lower court s decision. In the Court s opinion, these were effective remedies which the applicant should have exhausted. 86. As concerns the proceedings relating to other belongings allegedly destroyed or thrown away, the Court observes that the applicant failed to appeal against the Court of Appeal s decision to the Supreme Court. Just as for the proceedings above, the Court finds that an appeal to the Supreme Court constituted an effective remedy which the applicant was obliged to exhaust in order to fulfil the requirement of Article 35 1 of the Convention. 87. Likewise and for the same reasons as above, the Court notes that the applicant failed to appeal against the Court of Appeal s decision to the Supreme Court in the proceedings concerning the writ of execution and that he thereby did not exhaust domestic remedies in respect of this set of proceedings either.

20 18 ROUSK v. SWEDEN JUDGMENT 88. It follows that the Government s objection in this respect must be accepted and the applicant s complaints relating to these three sets of proceedings be declared inadmissible for non-exhaustion of domestic remedies within the meaning of Article 35 1 and 4 of the Convention. 89. However, the Government have also claimed that if the applicant had exhausted domestic remedies in the proceedings relating to the issuance of the writ of execution, the decision to sell the property and the ensuing eviction could have been revoked in accordance with Chapter 18, section 14, of the Enforcement Code and that, consequently, the applicant s failure to exhaust domestic remedies in this respect meant that he lost a possible chance to avoid the sale of his property and the ensuing eviction. The applicant contested this. 90. The Court reiterates that by virtue of Article 35 1 of the Convention normal recourse should be had by an applicant to remedies which are available and sufficient to afford redress in respect of the breaches alleged. The existence of the remedies in question must be sufficiently certain not only in theory but in practice, failing which they will lack the requisite accessibility and effectiveness (see, among other authorities, Akdivar and Others v. Turkey, judgment of 16 September 1996, Reports 1996-IV, p. 1210, 66, and Čonka v. Belgium, no /99, 43, ECHR 2002-I). 91. In the present case, the Court observes that the applicant s property was sold and he was evicted while the proceedings concerning the writ of execution were still pending before the Court of Appeal. Thus, even if the applicant had been successful in those proceedings, it is difficult to see how the sale and, in particular, the eviction could have been undone. It would appear to the Court that, at best, the applicant would have been financially compensated for the loss of his home. However, even this is not certain since the provision referred to above by the Government states that later decisions may be revoked, indicating that it is an option for the authorities but not an obligation. In these circumstances, the Court finds that the fact that the applicant did not exhaust the remedies indicated by the Government in relation to the writ of execution cannot lead to the conclusion that the applicant s complaints relating to the sale of his property and the eviction from his home are also automatically inadmissible for non-exhaustion. In fact, the Court notes that the applicant did appeal against the decisions to sell his property and to evict him, all the way to the Supreme Court. The Government s objection in this respect must therefore be dismissed. 92. The Court further notes that the complaints concerning the sale of the applicant s property on public auction and the ensuing eviction are not manifestly ill-founded within the meaning of Article 35 3 (a) of the Convention and that they are not inadmissible on any other grounds. This part of the application must therefore be declared admissible.

21 ROUSK v. SWEDEN JUDGMENT 19 B. Merits 1. The applicant s submissions 93. The applicant submitted that his right to the peaceful enjoyment of his possessions had been violated when his property was sold at public auction, and he was subsequently evicted, for an enforceable debt amounting to no more than SEK 6,721 on the day of the sale. In his view, this measure constituted an irrevocable and definite deprivation of his property and was completely disproportionate to the aims pursued, in particular as the decision to sell the property had not gained legal force when the property was sold and when he was evicted. 94. He stressed that he had been suffering from severe depression at the time of the events and that this was the single reason for his failure to submit his tax return in time and for not having applied sooner for respite to submit his tax return. 95. According to the applicant, his case concerned to a large extent the lack of procedural safeguards. Although he agreed that States should be afforded a wide margin of appreciation when adopting laws in order to secure, inter alia, the payment of taxes, the same should not apply to the right to procedural safeguards when applying and interpreting those laws. In such cases, the States margin of appreciation should be very narrow. This was in particular so when the creditor demanding payment was the State itself. 96. The applicant further argued that the Tax Authority had failed to comply with section 8 of the Ordinance on the Collection of Debts to the State when it did not promptly notify the Enforcement Authority that it had granted him respite from the payment of the tax debt. The Tax Authority ought to have known that there was an impending risk of his property being sold since it was the Tax Authority that had sought the enforcement in the first place. Moreover, the Tax Authority also failed to treat his request for respite promptly, granting it only on 3 September 2003, more than a month after he had submitted the first request and despite him having informed the Authority about the urgency of the matter and having submitted his tax return. To the applicant this revealed a flaw in the system which weighed heavily when considering the proportionality of the measure. 97. As concerned the proportionality of the enforcement measures against him, the applicant submitted that when using a system of early enforcement of tax debts as applied in Sweden, the State had to provide extra safeguards especially if, as in his case, there were indications prior to the fait accompli that the debt should not be enforced. He pointed out that, according to the Court s case-law, proceedings leading to a possible interference with a person s property rights must afford the individual a reasonable opportunity of putting his or her case to the responsible